Citation Nr: 0703792
Decision Date: 02/06/07 Archive Date: 02/14/07
DOCKET NO. 05-14 429 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an increased disability rating for bilateral
pes planus, currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky
INTRODUCTION
The veteran had active military service from August 1944 to
February 1946.
This appeal to the Board of Veterans' Appeals (Board) arose
from a June 2002 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Cleveland,
Ohio.
FINDING OF FACT
The veteran's bilateral pes planus is not productive of
marked pronation, extreme tenderness of the plantar surfaces
of the feet, or marked inward displacement and severe spasm
of the tendo Achilles on manipulation.
CONCLUSION OF LAW
The criteria for a disability evaluation in excess of 30
percent for bilateral pes planus have not been met.
38 U.S.C.A. §§ 1155, 5103A, 5107(b) (West 2002);
38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.59,
4.71a, Diagnostic Code 5276 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2005); 38 C.F.R. §§ 3.102, 3.156(a),
3.159 and 3.326(a) (2006).
Notice
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2005); 38 C.F.R. § 3.159(b) (2006); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; (3) that the claimant is
expected to provide; and (4) must ask the claimant to provide
any evidence in her or his possession that pertains to the
claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA
notice should be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see
also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
On March 3, 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). The Court in Dingess/Hartman holds that the
VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a "service
connection" claim. As previously defined by the courts,
those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. Upon
receipt of an application for "service connection,"
therefore, the Department of Veterans Affairs (VA) is
required to review the information and the evidence presented
with the claim and to provide the claimant with notice of
what information and evidence not previously provided, if
any, will assist in substantiating or is necessary to
substantiate the elements of the claim as reasonably
contemplated by the application. Because the Court's
decision in Dingess/Hartman is premised on the five elements
of a service connection claim, it is the consensus opinion
within the VA that the analysis employed can be analogously
applied to any matter that involves any one of the five
elements of a "service connection" claim, to include an
increased rating claim.
In the present case, VA satisfied its duty to notify by means
of July 2001, April 2003, and July 2004 letters from the
agency of original jurisdiction (AOJ) to the appellant.
These letters informed the appellant of what evidence was
required to substantiate his claim for an increased
disability rating for his service-connected disability at
issue. The letters also informed him of his and VA's
respective duties for obtaining evidence, as well as
requested that the veteran submit any additional evidence in
his possession pertaining to his claim.
These letters failed to discuss the law pertaining to the
assignment of an effective date in compliance with
Dingess/Hartman. The Board acknowledges that the RO failed
to inform the veteran as to how an effective date would be
assigned, but finds that this omission was not prejudicial
because the preponderance of the evidence is against the
claim for an increased disability rating. See Bernard v.
Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses
a question that has not been addressed by the agency of
original jurisdiction, i.e., the RO, the Board must consider
whether the veteran has been prejudiced thereby). Therefore,
the Board finds that the appellant has been informed of what
was necessary to be awarded an increased disability
evaluation.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S.
Court of Appeals for Veterans Claims held, in part, that a
VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits. The veteran received his initial VCAA notice in
July 2001, prior to the RO's initial adjudication of his
claim and the issuance of the June 2002 rating decision. As
such, there was no defect with respect to the timing of the
VCAA notice for this claim.
The content of the notice provided to the appellant fully
complied with the requirements of 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159(b) regarding VA's duty to notify. The
appellant been provided with every opportunity to submit
evidence and argument in support of his claims and to respond
to VA notices. Further, the Board finds that the purpose
behind the notice requirement has been satisfied because the
appellant has been afforded a meaningful opportunity to
participate effectively in the processing of his claim. For
these reasons, it is not prejudicial to the appellant for the
Board to proceed to finally decide this appeal.
Duty to assist
With regard to the duty to assist, the claims file contains
the veteran's reports of VA post-service treatment and
examinations. Additionally, the claims file contains the
veteran's own statements in support of his claim, including a
transcript of his testimony at a hearing before the
undersigned Veterans Law Judge (VLJ). The Board has
carefully reviewed such statements and concludes that he has
not identified further evidence not already of record. The
Board has also perused the medical records for references to
additional treatment reports not of record for the time
period at issue, but has found nothing to suggest that there
is any outstanding evidence with respect to the veteran's
claim for an increased disability evaluation.
Based on the foregoing, the Board finds that all relevant
facts have been properly and sufficiently developed in this
appeal and no further development is required to comply with
the duty to assist the veteran in developing the facts
pertinent to his claim. Essentially, all available evidence
that could substantiate the claim has been obtained. There
is no indication in the file that there are additional
relevant records that have not yet been obtained.
Legal Criteria
Disability ratings are determined by evaluating the extent to
which a veteran's service-connected disability adversely
affects his or her ability to function under the ordinary
conditions of daily life, including employment, by comparing
his or her symptomatology with the criteria set forth in the
Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1. If two ratings are potentially applicable,
the higher rating will be assigned if the disability more
nearly approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. See 38 C.F.R.
§ 4.7. Any reasonable doubt regarding the degree of
disability will be resolved in favor of the veteran. See
38 C.F.R. § 4.3.
A disability rating may require re-evaluation in accordance
with changes in a veteran's condition. Thus, it is essential
that the disability be considered in the context of the
entire recorded history when determining the level of current
impairment. See 38 C.F.R. § 4.1. See also Schrafrath v.
Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where, as
here, the veteran is appealing the rating for an already
established service-connected condition, his present level of
disability is of primary concern. See Francisco v. Brown, 7
Vet. App. 55, 58 (1994).
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection of parts of the
musculoskeletal system, to perform the normal working
movements of the body with normal excursion, strength, speed,
coordination, and endurance. The functional loss may be due
to absence of part, or all, of the necessary bones, joints,
and muscles, or associated structures, or to deformity,
adhesions, defective innervation, or other pathology, or it
may be due to pain, supported by adequate pathology and
evidenced by visible behavior of the claimant undertaking the
motion. Weakness is as important as limitation of motion,
and a part that becomes painful on use must be regarded as
seriously disabled. See 38 C.F.R. §§ 4.40, 4.45, and 4.59
(2003). See also DeLuca v. Brown, 8 Vet. App. 202, 206-07
(1995).
The veteran's bilateral pes planus is currently rated as 30-
percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code
5276. Under this Code, a 30 percent rating for bilateral
flat foot requires a severe condition with objective evidence
of marked deformity (pronation, abduction, etc.), pain on
manipulation and use accentuated, indications of swelling on
use, and characteristic callosities. A 50 percent rating for
bilateral pes planus requires a pronounced condition
manifested by marked pronation, extreme tenderness of the
plantar surfaces of the feet, marked inward displacement and
severe spasm of the tendo Achilles on manipulation, not
improved by orthopedic shoes or appliances. Id.
Considering the evidence relating to the veteran's service-
connected bilateral pes planus under the rating criteria,
Diagnostic Code 5276, the Board finds that the veteran's
disability picture is most consistent with the current 30
percent disability evaluation, and that an increased
disability evaluation is not warranted. In this regard, the
Board observes that the objective clinical evidence of record
does not show that the veteran has pronounced flatfoot with
marked pronation, marked inward displacement and severe spasm
of the tendo Achilles upon manipulation, which is not
improved by orthopedic shoes. While the veteran experiences
pain and tenderness to palpation, there were no calluses of
the plantar surfaces at his VA examinations. There was also
no pronation or valgus of the heels and Achilles tendons. He
was able to rise onto his heels and toes, as well as squat.
His onychomycosis and hallux valgus were not attributed to
his bilateral pes planus and his orthopedic shoes have been
associated with complications related to his diabetes
mellitus. He wears orthotic inserts in his shoes for his
bilateral pes planus, but he does not experience any
difficulties with his daily activities and he has not
required medication or surgery. Therefore, the veteran's
symptomatology most closely fits within the criteria for the
currently assigned 30 percent evaluation.
The Board also has considered whether the veteran is entitled
to a higher rating on the basis of functional loss due to
pain, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995).
See, too, 38 C.F.R. §§ 4.40, 4.45, and 4.59. He reports
experiencing pain and tenderness. But, there is no evidence
of abnormality and the tenderness and fatigability he
experiences due to his bilateral pes planus are adequately
accounted for in his currently assigned disability
evaluations. Thus, there is no objective clinical indication
he has other symptoms causing additional functional
limitation to a degree that would support a higher,
compensable rating.
Finally, the Board has considered whether the veteran is
entitled to a higher disability rating on an extra-schedular
basis. However, the Board concludes the record does not
present such "an exceptional or unusual disability picture
as to render impractical the application of the regular
rating schedule standards." 38 C.F.R. § 3.321(b)(1). There
is no probative indication his bilateral pes planus caused
marked interference with his employment or necessitated
frequent periods of hospitalization as to render impractical
the application of normal rating schedule standards. The
veteran is retired, and he has not provided any medical
evidence indicating that his current symptomatology required
any hospitalization or prolonged treatment for his bilateral
pes planus. So there is no basis for referring
this case to the Director of VA's Compensation and Pension
Service for extra-schedular consideration. See, e.g.,
Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996);
Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown,
8 Vet. App. 218, 227 (1995).
In conclusion, the Board finds that the preponderance of the
evidence is against the claim for a higher rating for
bilateral pes planus, on either a schedular or extra-
schedular basis, so the benefit-of-the-doubt rule does not
apply. 38 C.F.R. § 4.3; Alemany v. Brown, 9 Vet. App. 518,
519 (1996).
ORDER
The claim for a rating higher than 30 percent for bilateral
pes planus is denied.
____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs